Francis W. Splittorff v. Eloise W. Fehn (6/16/04 IndCtApp) [Real Estate; Contracts]
Friedlander, Judge
Rural Acceptance Corp. established a procedure for parties such as Fehn to follow upon discovery of a judgment lien entered against property they are purchasing under an installment contract. Such party should: (1) cease making payments to the seller/judgment debtor; (2) initiate a separate action to resolve questions related to the right to the unpaid balance of the purchase amount; and (3) arrange to pay the balance due under the contract to the court and so notify the court. Having followed the procedure approved in Rural Acceptance Corp., Fehn did not abandon the contract, but instead did all that was necessary to preserve her rights under the contract. Therefore, the trial court did not err in granting summary judgment in Fehn’s favor.Howard County Board of Commissioners v. Kellie Lukowiak (6/16/04 IndCtApp) [Tort Claim]
Judgment affirmed.
KIRSCH, C.J., and BARNES, J., concur.
We have found no provision within the [Tort Claims Act, IC 34-13-3] which authorizes a claimant to file an amended notice. Were the amended notice filed within the required time period after the event causing the damages occurred, we perceive of no problem with allowing the amendments to be applicable to the claim. Nevertheless, in this case the amendments were not made within the required time period for filing a notice. Furthermore, the changes made to the notice went to the heart of the claim; specifically, the amendments enunciated new damages not contemplated in the original notice. Given that the policy behind the Act is to provide the political subdivision with sufficient information so that it may ascertain the full nature of the claims against it, we conclude that the amendment in this case was not proper and could not be relied upon to support the claim. Thus, the claim for lost wages and loss of consortium may not survive. Partial summary judgment should have been granted in favor of the Board on those specific claims.Benjamin Rose v. State of Indiana (6/16/04 IndCtApp) [Criminal Law & Procedure]The denial of summary judgment is affirmed in part and reversed in part, with summary judgment granted in favor of the Board in regard to the claims for lost wages and loss of consortium. The cause is remanded to the trial court for further proceedings not inconsistent with this decision.
ROBB, J., and HOFFMAN, Sr.J., concur.
Concerned Citizens of West Boggs Lake v. West Boggs Sewer District, et al. (6/16/04 IndCtApp) [Utilities]
Baker, Judge
Appellants-intervenors, the Concerned Citizens of West Boggs Lake (Concerned Citizens) appeal the Indiana Utility Regulatory Commission’s (IURC) grant of a Certificate of Territorial Authority (CTA) to the appellee-petitioner, West Boggs Sewer District, Inc. (West Boggs) regarding its application to operate a sewage disposal facility. Concerned Citizens argues that granting the CTA was contrary to law because the proposed sewage disposal service was going to be operated in the town of Loogootee. In essence, Concerned Citizens maintains that West Boggs is prohibited from operating that type of business in the town because it would not be “owning” a treatment plant and, therefore, it could not qualify as a sewage disposal company. Moreover, Concerned Citizens urges that West Boggs is a mere collection system and does not qualify as a “sewage disposal company” in accordance with Indiana law. Concluding that West Boggs’s plan to operate a sewage disposal facility was in conformance with relevant statutory authority, we affirm the judgment of the IURC. * * *Freda D. Counceller v. John D. Counceller (6/16/04 IndCtApp) [Family Law]In urging that the grant of the CTA to West Boggs was contrary to law, Concerned Citizens points to Indiana Code section 8-1-2-89(a)(2), which provides that a sewage disposal company must “operate, lease or own any sewage disposal service within the rural areas of this state.” Moreover, Concerned Citizens relies on this court’s holding in Town of Merrillville v. Lincoln Utilities, Inc., 355 N.E.2d 851 (Ind. Ct. App. 1976), where we observed that “the Public Service Commission may only grant certificates of authority to those ‘sewage disposal companies’ who propose to render a ‘sewage disposal service’ in a ‘rural area’ of this State.” Id. at 856. Concerned Citizens goes on to maintain that West Boggs does not qualify as a “sewage disposal company” and, therefore, it was not eligible for the issuance of a CTA to render “sewage disposal services.” Because West Boggs does not own, lease or operate a sewage disposal company, nor does it intend to do so—says Concerned Citizens—the issuance of the CTA was contrary to law. * * *
In this instance and others, the IURC has granted CTA’s and indeterminate permits to other sewage disposal companies. In the context of such findings and orders issued by the IURC, as well as the objectives set forth by our legislature, the definition of a “sewage disposal service” should not be so narrowly construed as to require that each and every component of services or facilities listed in the definition must be solely owned and operated by an entity before it can qualify as a “sewage disposal company” within the meaning of Indiana Code section 8-1-2-89. Put another way, to interpret the definition of “sewage disposal service” to exclude from the definition a company that provides essential aspects of sewer utility service, such as a collection system and lift stations, while contracting for the final treatment of the waste by a municipality or other utility that already has a treatment plant, would simply result in a hardship and absurdity that should be avoided. For these reasons, we affirm the IURC’s grant of the CTA and indeterminate permit to West Boggs.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
Appellant/Cross-Appellee-Respondent Freda Counceller (“Mother”) appeals the denial of her motion to correct error, which challenged findings of fact, conclusions of law and judgment entered upon Mother’s motion to modify child support and petition for contempt against Appellee/Cross-Appellant-Petitioner John Counceller (“Father”). We affirm.Ernst & Young, et al. v. Indianapolis Star (6/16/04 IndCtApp) [Public Records]Issue. * * * We address a single, consolidated issue not barred by the doctrine of res judicata: whether the findings of fact, conclusions of law and judgment entered by the trial court on January 29, 2003 were clearly erroneous. * * *
Affirmed.
FRIEDLANDER, J., concurs.
BAKER, J., concurs in result with separate opinion: I fully concur in the result reached by the majority. However, I would remand for an assessment of attorney fees against Mother. Initially, I wish to point out that, although Indiana has continuing jurisdiction here, I am certain that our courts would be only too happy to send this case to California considering the judicial resources that the seemingly endless litigation between these ex-spouses consumes. However, we will spare our west coast colleagues this fate. * * *
This appeal stems from the high-profile dissolution proceedings involving Janet L. and Richard S. Bobrow. The issues presented on appeal do not involve the terms of the dissolution decree. In fact, the parties’ marriage was ultimately dissolved via a private and confidential settlement agreement, which the trial court approved. Instead, this appeal involves parties who intervened in the dissolution proceedings to address the key issue of whether the Indiana Access to Public Records Act, Indiana Code §§ 4-14-3-1 to -10 (“the Public Records Act” or “the Act”) [Note - this should be 5-14-3 etc.] , permits a trial court to seal public records—which fall within a mandatory exception to the public access provisions of the Act—after those records are admitted into evidence at trial. Based on the plain and clear meaning of the Public Records Act, we conclude that the Act permits the trial court to seal public records that fall within a mandatory exception to the Act either before or after they are admitted into evidence. We also conclude that this is a right that a party can waive. * * *Note: The Indiana Law Blog wrote about the Hamilton County Court decision on April 15, 2003. Access the entry here. And check back here for press coverage, sure to follow.The trial court conducted the final hearing in the dissolution proceedings in October 2001. Prior to the hearing, which was open to the public, Janet and Richard stipulated to the admissibility of the documents that were produced by E&Y and designated as confidential pursuant to the Protective Orders. During the hearing, Janet—who had not notified E&Y and Cap Gemini either before or after the hearing—admitted the documents into evidence. Richard neither objected to the admission of the exhibits based on their confidentiality nor moved to seal the exhibits. Additionally, Janet and Richard did not enter into an agreement or seek a pre-trial order governing the use of the protected information at trial. Nearly a year later, in September 2002, the trial court entered its Decree of Dissolution. Because of the sensitive financial information revealed in the decree concerning E&Y and Cap Gemini, the Decree of Dissolution generated nationwide publicity. See David Cay Johnston, Ernst Finances are Disclosed in Documents in a Divorce, N.Y. Times, Oct. 15, 2002, at C1.
In response to numerous requests for the actual trial exhibits, including one by The New York Times (“The Times”), the trial court conducted a conference with the attorneys for Janet and Richard. Neither attorney opposed the release of the exhibits. Three days after the article was published in The Times, E&Y filed a Motion to Seal Certain Trial Exhibits and Trial Testimony, which it later supplemented, on grounds that eighteen of the exhibits See footnote contained trade secrets and confidential financial information, which are specifically excepted from the public access provisions of the Public Records Act. Because some of the eighteen exhibits also contained trade secrets and confidential financial information of Cap Gemini, it later joined this motion. Thereafter, The Times filed a Motion to be Heard Prior to Any Determination to Seal Exhibits and Transcripts. * * *
Conclusion. The Public Records Act permits the trial court to seal public records that fall within a mandatory exception to the Act either before or after they are admitted into evidence. Accordingly, the trial court erred by denying E&Y and Cap Gemini’s Motion to Seal the eighteen exhibits. Although interested third persons may request that records be sealed after they are admitted into evidence, this is a right that can be waived. Richard has waived his right to seal the various records because he stood silently by as the records were admitted into evidence and as the trial transcript was being made.
Affirmed in part, reversed in part, and remanded.
SHARPNACK, J., concurs.
MATHIAS, J., concurs with separate opinion.
[Update] Here is Indianapolis Star coverage timelined 5:58 PM. Some quotes:
Trade secrets should stay trade secrets in Indiana -- even after they no longer are secret, an Indiana Court of Appeals has ruled. Indiana's public records laws, the court ruled today, permit a trial court to seal public records that fall within certain mandatory exceptions, such as a business's confidential information, even after they have been disclosed as evidence.Leon Leffingwell v. State of Indiana (6/16/04 IndCtApp) [Criminal Law & Procedure] Posted by Marcia Oddi at June 16, 2004 02:05 PMThe three-member court ruled in favor of accounting powerhouse Ernst & Young LLP , which sought to seal its business records after they were introduced as evidence in the divorce of former Ernst & Young chief executive Richard S. Bobrow. The records had not only been used as evidence in the Hamilton County divorce proceeding, but also publicized in the New York Times -- which had obtained them before the companies asked that they be sealed.
While Hamilton Superior Court Judge Steve Nation had ruled in April 2003 that the records, once admitted into evidence, should be public, he had kept them shielded pending the outcome of the appeal. Steve Key, general counsel to the Hoosier State Press Association, said the court's decision is like "trying to put a genie back in a bottle."